Andrews v. Gonzalez
2014 IL App (1st) 140342
Ill. App. Ct.2014Background
- In 2007 Andrews sued G&G Cement Contractors (a general partnership), Dagoberto Gonzalez (a partner), the estate of Jose Gonzalez, and the driver, alleging negligence after a truck collision; jury found G&G and the driver liable but found Dagoberto not individually liable.
- Judgment of $3,092,000 was entered against G&G; CNIC (partnership insurer) later paid its $300,000 policy limit only after litigation and court order.
- Andrews obtained an assignment of G&G’s claims against CNIC from Dagoberto (executed “under protest”) and then sued CNIC for bad faith and Dagoberto personally for the unsatisfied portion of the partnership judgment.
- Dagoberto moved to dismiss under 735 ILCS 5/2-619(a)(4), arguing res judicata barred Andrews’ new suit because Dagoberto had been a defendant and found not liable in the underlying negligence trial.
- The trial court granted dismissal; Andrews appealed, arguing Illinois statutory law (Uniform Partnership Act §§306–307 and Code §§2-410–2-411) permits a separate action to enforce a partner’s individual liability for an unsatisfied partnership judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether res judicata bars a later suit to collect a partnership judgment from a partner who was previously sued and found not liable individually | Andrews: statutes (805 ILCS 206/306–307; 735 ILCS 5/2-410–2-411) allow a separate action to enforce a partner’s secondary liability for an unsatisfied partnership judgment, so res judicata does not bar the claim | Gonzalez: prior suit gave Andrews the opportunity to obtain judgment against him; res judicata applies and statutory scheme does not create an exception | Court: Res judicata does not bar Andrews. Liability to enforce an unsatisfied partnership judgment (secondary liability) is a distinct cause of action from the earlier negligence suit (direct/vicarious liability). |
Key Cases Cited
- Wayne Smith Construction Co. v. Wolman, Duberstein & Thompson, 604 N.E.2d 157 (Ohio 1992) (analyzing partner liability when partnership judgment was vacated as to partners under South Carolina law)
- Thompson v. Wayne Smith Construction Co., 640 N.E.2d 408 (Ind. Ct. App. 1994) (distinguishing direct partner liability from secondary liability after exhaustion of partnership assets)
- Travelers Ins. Co. v. St. Jude Hosp. of Kenner, La., Inc., 37 F.3d 193 (5th Cir. 1994) (holding a creditor’s claim against a partner for his share of a partnership judgment arises from a different nucleus of operative fact than the partnership’s debt)